I do not know what I can do about the thinking countrymen. They are all there for a cricket commentary or some boorish confrontation among politicians. But when some serious questions crop up, they are blissfully silent. That probably explains why President Abdul Kalam and Law Minister Bharadwaj have got away with the observations they have made. Neither political parties nor media hands have paid any attention to them. The President has said that the executive is not free because the legislature and the judiciary restrict its independence. Bharadwaj says sarcastically that the Supreme Court was responsible for tarnishing its own image as a champion of civil liberties.
The President’s concern for the executive is understandable because he “supervises” it. According to Article 74 of the constitution, “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.” But the President’s concern is misplaced because the executive is the offspring of the legislature. The real power lies with the latter because it represents the people, sovereign in a democratic system. The executive is an independent entity only to the extent the majority in a legislature allows it to be. The Westminster Model that we have adopted makes it obligatory for the executive to be answerable to the legislature. Thank God, we didn’t adopt the presidential form of government, a one-person executive, which relegates the people-elected legislature to a vassal position.
We experienced this in the parliamentary system itself in 1975 going through a harrowing period when the executive was “free.” It suspended the fundamental rights, gagged the Press, smothered dissent and detained more than 1,00,000 people without trial. Since then, the dividing line between the right and wrong, moral and immoral, has ceased to exist. Again, we saw a few months ago how the one-man executive — the Governor during President’s rule — dismissed an elected legislature in Bihar to reap political dividends. That it was the doing of the ruling party at the Centre makes it all the more necessary not to let the executive act without checks of the legislature and the judiciary. The Supreme Court rightly adjudged the governor’s dismissal of the Bihar legislature wrong.
The President has said: “Large numbers of regulations exist to constantly keep the actions of the executive under the watchful glare of the legislature and the judiciary and that unquestionably takes the much bandied-about independence of the executive.” Where he goes wrong is in his impression that the executive is a parallel setup to the legislature. Without the “watchful glare of the legislature and the judiciary,” the executive may act like a bull in a China shop.The judiciary has, in fact, a bigger role to play. It is the custodian of the Constitution. It has to supervise the task of keeping both the executive and the legislature within the confines of what the constitution demands.
Another responsibility entrusted to the judiciary is to ensure the executive and its master, the legislature, do not violate the basic structure of the Constitution because that represents our ethos. The reason why the President finds the judiciary proactive is the executive’s weakness. It is not performing well and increasingly vacating its territory to the judiciary. When the courts have to step in to lessen pollution, to oust the unauthorised occupants of the government property or to see that faulty power meters are removed, it is obvious that the executive has faltered in its job.
Bharadwaj’s remark about lack of liberalism in the judiciary is the unkindest cut. But he is somewhat justified in saying so. The judiciary, indeed, is not liberal enough today to respond to the demand by human rights activists. But Justice P.N. Bhagwati is not the person the law minister should have praised. He makes it worse when he brackets Bhagwati with Justice Krishna Iyer, an icon for liberals. True, Justice Bhagwati provided judicial redress to the people wronged and upheld the cause of liberty in many cases. But he did irreparable damage to the judiciary when he justified suspension of fundamental rights during the Emergency. In his judgment, which threw out habeas corpus petitions by different detainees, he said that since people were detained in accordance with the law, they had no remedy. The law minister is right when he says, “you can’t get bail from the high courts and the Supreme Court these days.” But he is wrong in putting all the blame on the judiciary. The prosecution does not do its homework nor do the police which tend to cook up evidence. In fact, most cases placed before judges are so defective that the bail granted on the basis of that material becomes a topic of debate.
However, the point on which the Supreme Court can be faulted is in the listing of cases for hearing. The procedure seems whimsical. The most pressing case involving public interest is not fixed for months.
Take the case of the domicile qualification for the Rajya Sabha members, that is, they have to be ordinarily resident of the state whose assembly elects them. The Supreme Court admitted the petition more than one-and-a-half years ago. But it has not found time to hear it. The result is that one-third of the 250 MPs in the Rajya Sabha are “outsiders.” The Election Commission blithely goes on filling vacancies without bothering that the petition is pending before the Supreme Court.
Yet another case is that of the destruction of Ridge in Delhi. Huge plazas are coming up at the place and they have already choked the vital recharge water point. The Supreme Court is yet to dispose of the petition filed more than a year ago. It has not given even a stay order. I think the real problem in such cases is that the Court is primarily concerned with the meaning and the constitutionality of law rather than the fate of individuals who encounter the law. The question is no longer whether the executive or the judiciary has the necessary power, but how they use it.
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